United States District Court, E.D. Michigan, Southern Division
OPINION & ORDER GRANTING IN PART AMENDED MOTION
TO STRIKE (DKT. 18)
A. GOLDSMITH UNITED STATES DISTRICT JUDGE.
matter is before the Court on Plaintiff Howard Cohan's
amended motion to strike (Dkt. 18). Cohan brought this action
under Title III of the Americans with Disabilities Act
(“ADA”) against Defendant Genji Novi, Inc., a
restaurant in Novi, Michigan. Cohan, a disabled individual,
alleges that the restaurant has numerous architectural
barriers, which denied him equal access and enjoyment of the
establishment. Cohan seeks to strike five of Genji's
thirteen affirmative defenses under Federal Rules of Civil
Procedure 11 and 12. Genji filed a response opposing
Cohan's motion (Dkt. 20). No reply brief was filed. For
the reasons discussed below, Cohan's motion is granted in
has the discretion to strike an insufficient defense from a
pleading, Fed.R.Civ.P. 12(f), but such relief is disfavored
and infrequently granted, Operating Engineers Local 324
Health Care Plan v. G & W Constr. Co., 783 F.3d
1045, 1050 (6th Cir. 2015). An affirmative defense is
insufficient where “as a matter of law, the defense
cannot succeed under any circumstances.”
Specialized Pharm. Servs., LLC v. Magnum Health &
Rehab of Adrian, LLC, No. 12-12785, 2013 WL 1431722, at
*6 (E.D. Mich. Apr. 9, 2013) (citing cases). The purpose
“of a 12(f) motion to strike is to avoid the
expenditure of time and money that must arise from litigating
spurious issues by dispensing with those issues” early
in the case. Kennedy v. City of Cleveland, 797 F.2d
297, 305 (6th Cir. 1986).
pleadings, including affirmative defenses, are governed by
Federal Rule of Civil Procedure 11. Rule 11(b) requires that
a representation in a pleading be made “to the best of
the person's knowledge, information, and belief, formed
after an inquiry reasonable under the circumstances.”
Defenses must be “warranted by existing law” or
be raised to extend or reverse existing law. Fed.R.Civ.P.
takes issue with the following affirmative
1. Plaintiff failed to provide Defendant notice of the
alleged violation of Title III of the Americans with
Disabilities Act of 1990 prior to filing this lawsuit and
failed to request Defendant to provide alternate access to
its facilities or provide Defendant an opportunity to cure
the alleged violation of Title III of the Americans with
Disabilities Act of 1990.
5. Assuming, arguendo, that the alleged barriers about which
Plaintiff complains exist, those barriers will be removed.
10. The goods, services, facilities, privileges, advantages,
and accommodations Plaintiff contends that he has been barred
from receiving are available to him through alternative
12. Plaintiff's claims are barred to the extent that he
failed to mitigate his alleged damages, if any.
13. Plaintiff's claims are barred because the claimed
violations are “de minimis” and nonactionable
because they do not materially impair Plaintiff's use of
an area for an intended purpose.
Affirmative Defs. ¶¶ 1, 5, 10, 12, and 13 (Dkt.
12). The defenses will be addressed in turn.
Affirmative Defense One - ...